Articles Posted inCo-parenting

Marriage of Burmester highlights the disastrous consequences that can result from poorly worded or structured child support agreements and orders.

Shortly before Husband and Wife divorced in 1999, they entered into a marital settlement agreement / court order resolving support, property division, and other issues related to the dissolution. Husband would pay Wife $803 per month in child support–$368 in base support and a $435 child care allowance–for their two kids. That was the first mistake – including the daycare as part of the monthly child support amount. To whatever extent the parties share or pay for daycare it should be separate from the child support payment. The child support obligation would be retroactive to September 2008, the month in which Husband and Wife initially separated. Husband paid more than $48,000 in child support over the next 14 or so years.

Husband lost his job in 2013 after suffering an unknown physical injury. He wasn’t able to work at this time, and he underwent surgery and rehabilitation. And the second mistake was not going back to court to modify support and stop the daycare order when not needed. Wife also lost her job at around the same time. She eventually went back to court, seeking child support arrears from Husband. Although the parties agreed that both children became emancipated and were no longer entitled to support by 2014, the trial judge said Husband owed Wife more than $70,000 in unpaid earlier support. After adding interest in the amount of some $27,000, the trial court hit Husband with a $97,000 bill for the unpaid support.

Divorce can result in several tax issues, including which parent will claim the child-related tax breaks. Sometimes, but not always, it is the parent that claims the child as a dependent.

Dependency Exemption

For tax purposes, the parent who has custody for the greater part of the year, ie more than 50%, is the parent who can claim that child and is called the custodial parent. The other parent is considered the noncustodial parent.

Few, if any, parents would wish to punish their children for something they had nothing to do with, and would bristle at such a suggestion. And yet, so many do just that.

This frequently happens in divorces where a parent has had an affair, has spent an inordinate amount of time at work and less at home, or has ceded most of the parenting responsibilities to the other.

These parents when separating or divorcing believe they are entitled to significantly more parenting time because the other parent has squandered his or her right to that time based on these reasons. Why should he or she have the right to now spend so much time with the children they ask? And the reason is because it’s better for children to have a good and healthy relationship with that parent than not.

Decisions about whether and how much child support a divorcing spouse or co-parent should pay often depend on both how much money he or she makes or could make. The latter factor, usually referred to as “earning capacity,” can be difficult to quantify in many cases, and even more so when the parent’s immigration status prevents them from legally working. The state’s First District Court of Appeals recently considered one such case.

Husband filed for divorce from Wife in 2011, and the parties agreed the following year to a stipulation where Wife retained sole physical custody of the couple’s only child. The stipulation also gave Husband visitation rights but didn’t require him to pay child support. In 2013, Husband filed a motion seeking shared physical custody and for the Wife to pay him child support. Husband explained to the court that he was an undocumented immigrant who had overstayed his visa. Because of this status, Husband said he wasn’t able to work as a traditional employee. Nevertheless, he said that he’d worked as a carpenter for roughly 20 years and was planning to be a self-employed carpenter.

At the time, Husband said he was making about $750 per month. Opposing the child support request, Wife said the trial court should impute to him an income of $2,600 per week based on past earnings. She pointed to a 2011 income declaration in which Husband said he was making $65 an hour as a carpenter and working 40 hours per week. Instead, the court imputed a “minimum wage earning capacity” to Husband and awarded him 15 percent custody of the child. The court also ordered Wife to pay Husband $54 a month in child support. Husband appealed the decision.

The ultimate goal in resolving child custody and co-parenting issues is to reach a resolution that is in the best interests of the child. In In re Marriage of Erb, California’s Fourth District Court of Appeals explained that sometimes that means limiting the amount of contact former spouses have with each other.

Mother and Father were divorced in February 2004. The parties agreed that they would share legal custody of their then two-year old daughter (Daughter) and that Mother would have primary physical custody over the child, while Father would keep visitation rights.

Four years later, Father asked that the arrangement be changed so that Daughter would spend Wednesday nights with him and that his time with her be increased gradually until both parents shared equal time. A trial court agreed to increase Father’s time with Daughter to a more limited extent. Mother retained primary physical custody.

Following further litigation, however, the trial court agreed to a co-parenting plan submitted by Daughter’s independent counsel in June 2011. The plan provided for equal sharing of time with Daughter by Mother and Father under a “2-2-5-5” arrangement. Mother got two days with Daughter, Father got the next two days, then Mother got five days with Daughter and Father got the next five days.

Based largely on input from Daughter’s attorney – who interviewed Mother, Father, Daughter, her step-parents and a number of other family members – the trial court ruled that it was in Daughter’s best interests to put an end to the contentious litigation between her parents that had then been going on for seven years. “[W]e can’t go on like this,” the court said simply. It noted that the 2-2-5-5 plan would both add stability to Daughter’s everyday life and limit the number of exchanges between Mother and Father in an effort to avoid further disputes.